Elligood v. Cannon

4 Del. 176

• Court: Superior Court of Delaware
• Decided: July 5, 1844
• Status: Published

Opinion

By the Court.

The first exception is insufficient. The grammatical construction of the sentence would produce the uncertainty of place contended for; but the real and apparent meaning of the.summons, is to appear at the office of the justice named.

Cullen, for plaintiff. McFee, for defendant.

The second exception is fatal. The act of assembly requires the justice, before giving judgment by default, to" hear the allegations and proofs of the plaintiff; and to sustain such a judgment, this must appear either by express entry of the justice, or by other matters in the record. And this is an important matter. The justice ought to require all the proof which the nature of the case demands, whether the defendant appears or not. The default of the defendant cannot dispense with any such proof. In an action on a book account, as this is, the plaintiff’s book of original" entries ought to be produced and sworn to. Nothing of this kind appears by the present record. The entry is that the justice investigated the plaintiff’s demand; it ought to be that he heard the allegations and proofs of the plaintiff.

The third exception also would be sufficient to set aside the execution. The plaintiff treated the defendant as a ■ freeholder by making his first process a summons; and he was legal stay of execution, or make oath against the defendnat's freehold.